# Shiv Badan Pandey and others v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1283
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-29
- **Case number:** Writ Petition No. 2636 (MB) of 2006
- **Bench:** Pradeep Kant, D.K.Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-badan-pandey-and-others-v-state-of-u-p-and-others-41978
- **Pages:** 6

## Text

3 All] Shiv Badan Pandey and others V. State of U.P. and others
1283

15. There is another aspect to the
matter namely that if the qualification
conducted by private societies, in respect
of language are treated as equivalent to the
statutory boards, the candidates passing the
examination from the statutory board will
be seriously discriminated in appointments
in Government Service, which is regulated
by the statutory rules. The Court cannot
permit the equivalence to be considered so
casually.
In
Rajsthan
Pradesh
V.S.
Sardarshahar & Anr. (Supra) the Supreme
Court considered the legal status of Hindi
Sahitya Sammelan and found that it is
neither university/ deemed university nor
an educational board. It is society
registered under the Societies Registration
Act and is not an educational institutions
imparting education in any subject. There
is no school/ college imparting education
in any subject affiliated to it. It also does
not have any recognition from any
statutory authority, even in respect of
medical qualifications after 1967.

16. In the aforesaid circumstances,
we fully agree with the reasoning given by
the learned Single Judge in the judgment
cited as above and reiterate that the
Prathama
and
Madhyama
(Visharad)
examination conducted by the Hindi
Sahitya Sammelan are not equivalent to the
High
School
and
Intermediate
Examination conducted by the Board of
High School and Intermediate Education
U.P. The petitioner's qualification of
Madhyama (Vishrad) is thus not equivalent
to Intermediate Examination, and thus the
petitioner was not qualified and eligible to
be appointed as a clerk.

17. In our view learned Single Judge
did not commit any error in law in
allowing the writ petition only to the extent
that the District Magistrate may ensure that
the petitioner is appointed on any Class-IV
post.

18. The special appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2011

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE D.K.UPADHYAYA, J.

Writ Petition No. 2636 (MB) of 2006

Shiv Badan Pandey and others

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Constitution
of
India,
Article
226restoration of the shape of Pond-as
recorded
in
1356
Fasli
by
placing
reliance on Hinch Lal Tiwari case-prior to
dated of vesting plot in question was
recorded in Zimman-7-for cultivation of
Singhara-in 1359 fasli-by passes of time
land ceased to be Taalab-being used for
public purpose about 36 houses by Awas
and Vikash Parishad apart from schools
are situated-no right of any individual to
get removed all development and to
restore the shape of Taalab which had
lost
its
existence
and
utility-unless
pleaded of community pond raised and
accepted-no direction to restore the
shop of Pond can be given.

Held: Para 28 and 29

In the case of Hinch Lal Tiwari (supra),
their Lordships made an observation that
the land which has the character of a
pond but due to passage of time some
portion of it has dried up and rest of the
portion is covered with water, cannot be
allotted to anybody for construction of
house building or any allied purposes.

Of course, the land which requires
restoration of water reservoir for the
1284 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
purpose of community use cannot be
allowed
for
undertaking
any
other
activity
but
uprooting
the
existing
developed
colonies
or
houses
built
thereon at a time when the pond was not
in use and rather had fallen into disuse
because of drying up cannot be the
intention of law.
Case law discussed:
(2001) 6 SCC 496

(Delivered by Hon'ble Pradeep Kant, J.)

1. This petition initially was filed by
seven petitioners, out of whom Ashok
Diwakar, petitioner no. 1 and Smt. Anita
Shukla, petitioner no. 5 expired during
pendency of the writ petition and their
names have been deleted.

2. At the outset it would be pertinent
to mention that this petition though has been
filed in individual capacity, raising a
grievance regarding allotment of a piece of
land in favour of Nav Chetna Public School,
but there is nothing on record nor the
counsel
for
the
petitioners
could
substantiate any action which could have
given cause of action to the petitioners to be
aggrieved by the said allotment, in their
individual capacity.

3. We have, however, proceeded to
consider the case on the basis of the
pleadings in the writ petition and the pleas
as urged by the parties' counsel.

4. Sri Shailendra Singh Chauhan
representing the petitioners, vehemently
urged that Khasra Plot No. 406 situate in
Indira Nagar, Lucknow was, in fact,
recorded as Talaab prior to the date of
vesting and, therefore, this land could not
have been allotted in the name of the school
by Awas Evam Vikas Parishad and rather,
same should be restored in the shape of
Talaab (pond) in view of the dictum of the
apex court in the case of Hinch Lal Tiwari
v. Kamala Devi and others, (2001) 6 SCC
496.

5. Sri K.S. Pawar, appearing for Awas
Evam Vikas Parishad, has strongly disputed
the claim of the petitioners and has
submitted that the land in question was
legally and properly allotted to the school
but because of successive litigations being
brought to the Court by the petitioners and
other residents of the locality, the school
could not be constructed though allotment
was made in the year 1998 and the
respondent no. 5 had also deposited the
substantial amount. However, it appears that
certain formalities could not be completed
for the reason of litigations coming in
between.

6. Sri Mahesh Chandra appearing for
respondent no. 5 submits that successive
petitions filed by one person or the other,
have caused immense loss to the allottee
and that the plea of the petitioners that land
in question is a Talaab is not correct.

7. He further submits that even
assuming that it was recorded as a Talaab
before the date of vesting, yet it is a fact that
the Talaab was no more available and there
is no water which could be used or which
could be termed as water reservoir and the
land was allotted because it had lost the
character of Talaab and, therefore, it cannot
be said that any illegality has been
committing in alloting the said land in
favour of the school.

8. His further submission is that the
case of Hinch Lal Tiwari does not say that
where developments have taken place and
pond has lost its character and utility,
simply because of entry as Talaab in
3 All] Shiv Badan Pandey and others V. State of U.P. and others
1285
revenue records, all the developments
cannot be ruined for restoring the land as
Talaab again.

9. The record reveals that prior to the
filing of the present petition, successive writ
petitions were filed. Writ Petition No. 3363
(MB) of 1998 was filed by Jai Prakash
Narain Tripathi, who was the Chairman of
Jan Kalyan Awasiya Samiti. This writ
petition was disposed of with a direction to
the Housing Commissioner to decide the
representation, which was decided and
rejected on 5.7.2000. Being aggrieved by
rejection of the representation, Jan Kalyan
Awasiya Samiti and Jai Prakash Narain
Tripathi who was the President of the
Samiti, filed Writ Petition No. 3828 (MB)
of 2000.

10. In the earlier writ petition and the
present one, as well, a specific plea was
taken that the land in question was an open
space/park, which could not be let out or
allotted for the purpose of school. The said
writ petition, namely, Writ Petition No.
3828 (MB) 2000 was dismissed by a
Division Bench, of which one of us
(Pradeep Kant, J.) was a member on
21.9.05. The Division Bench came to the
conclusion that at no point of time the said
land was recorded as open place/park, as in
all lay out plans of the Parishad, the said
land has been shown as the land earmarked
for school.

11. Not being satisfied with the
dismissal of the aforesaid writ petition,
another writ petition, being Writ Petition
No. 7038 (MB) of 2005 was filed by one
O.P. Mishra and some of the present writ
petitioners. In this writ petition, a plea was
raised that the plot in question was recorded
as pond in Khatauni and was to be
preserved as park but it has illegally been
allotted to the school. This writ petition was
disposed of vide order dated 11.11.05, with
a direction that the representation of the
petitioners be decided by the Housing
Commissioner.
The
Housing
Commissioner, however, did not find any
force in the plea and rejected the
representation. This order was passed on
25.3.06.

12. Being aggrieved by the aforesaid
order dated 25.3.06, the present writ petition
has been filed.

13. The series of litigations mentioned
above, do indicate that the land in question
was allotted to the school on 4.7.98 and in
response to which, the school had deposited
the requisite amount as per rules but further
progress could not be made. The boundary
wall has been constructed as per the
directions of this Court in this petition itself.

14. The challenge initially was made
by a person or group of persons, namely,
the Society, to the allotment, taking a
specific plea that the land in question was
earmarked as an open space/park and,
therefore, it cannot be allotted to the school.
This plea was rejected as it could not be
substantiated before the Court that the land
was ever earmarked as open space or park.
The master plan was also looked into and
the lay out plan was also produced before
the Court, as is evident from the judgement
and order passed in Writ Petition No. 3828
(MB) of 2009.

15. The plea of open space/park
having failed, a new challenge was made by
filing Writ Petition No. 7038 (MB) of 2005,
raising a plea that the aforesaid plot was
recorded as pond in the Khatauni and,
therefore, it could not have been allotted to
the school.
1286 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

16. In regard to the aforesaid plea
regarding land being recorded as pond,
counsel for the petitioners heavily relied
upon
the
counter
affidavit
and
supplementary
affidavit
filed
by
Sri
Mahendra Singh, the then Sub Divisional
Magistrate,
Lucknow.
This
counter
affidavit/supplementary affidavit was filed
in pursuance of the directions issued by the
High Court on impleadment of the
Collector, Lucknow.

17. The counter affidavit filed by the
Sub Divisional Magistrate does not say
anywhere that Khasra Plot No. 406 was
ever recorded as Talaab (pond) in the
Khatauni prior to the date of vesting or
thereafter. What has been stated is that, as
per the entry in the Nakal Khatauni of 1356
Fasli, the said Khasra Plot No. 406
measuring 3 bigha 17 biswa, had been
recorded in Ziman-5 category to be used by
the Asamis for cultivation of Singhara, a
crop cultivated in water bodies. The said
Khasra is recorded in the name of Bhusan
son of Garibe Kahar in Khata Khatauni No.
98. In the year 1359 Fasli, the name of
Naumi Lal son of Thakur Deen alongwith
Bhusan Kahar finds place in Khata
Khatauni No. 88.

18. He has concluded that the
aforesaid Khasra fell under Mohal Umrao
Singh and the tenure holder was using the
same for Singhara cultivation etc. The entry
in the Khasra for the year 1359 Fasli in
relation to Khasra Plot No.. 406 also reveals
the area of the said Khasra as 3 bigha 17
biswa out of which 2 bigha land had been
recorded as Tal Majarua. However, in
column 19 of the said Khasra, the entire
area is recorded as Talaab.

19. In the supplementary affidavit
filed by the same officer, a site plan and
also a survey report have been given, from
where it is established that over plot no.
406,
thirty
four
houses
have
been
constructed and people are living therein,
including some of the petitioners, as
informed by parties' counsel and that one
bigha of land which has been allotted to the
school also forms part of the same very
Khasra Plot No. 406.

20. Though we are satisfied that in
case revenue entry of pond in respect of
certain land is recoded, may be since before
the date of vesting or thereafter but since the
pond has lost its utility and was no more in
use as a pond and land so covered or pond
so covered has been used for some public
purposes or some good cause, namely, for
development, it would not give a right to
any party to remove all the developments
and restore the pond, which, in fact, was no
more in existence but even then for
considering the plea of the petitioners, we
have proceeded to examine the case, as if
the said land was recorded as pond before
the date of vesting.

21. In Hinch Lal Tiwari (supra) the
apex court while holding that if a pond
(talaab) has fallen into disuse because of
drying up but some portion is covered by
water in rainy season, then no part of it can
be allotted to anyone as abadi site for
purposes of building houses in paragraph
13, made an observation that 'it is important
to note that material resources of the
community like forests, tanks, ponds,
hillocks, mountain etc. are nature's bounty.
they maintain delicate ecological balance.
They need to be protected for a proper and
health environment which enable people to
enjoy a quality life which is essence of the
guaranteed right under Articles 21 of the
Constitution. The government, including
revenue authorities, i.e. respondents 11 to
3 All] Shiv Badan Pandey and others V. State of U.P. and others
1287
13, having noticed that a pond is falling in
disuse, should have bestowed their attention
to develop the same which would, on one
hand, have prevented ecological disaster
and
on
the
other
provided
better
environment for the benefit of public at
large. Such vigil is the best protection
against knavish attempt to seek allotment in
non abadi sites'.

22. A plain reading of the aforesaid
observation would reveal that reference has
been drawn to the ponds and tanks which
are community tanks or which vests in
Gaon Sabha. If the tenure holder is using
the land for Singhara cultivation, the land
still would be cultivatory land and would
not be given the shape and colour of pond,
as mentioned therein.

23. The counter affidavit filed by Sub
Divisional Magistrate mentions that the land
was recorded in the name of private
individuals as Asami and they were
cultivating Singhara therein. If the pond is a
community pond, it has to be recorded in
the name of Gaon Sabha. The entry of an
individual i.e. Naumi Lal as tenure holder of
the said land defeats the very plea of the
petitioners that the land in question was a
pond before the date of vesting and,
therefore, the same could not have been
allotted or converted to any other use.

24. It was open for the tenure holder
to stop cultivating Singhara and do any
other activity over the said land as a tenure
holder, which was permissible under the
Act.

25. Counsel for the petitioners could
not be able to place before this Court any
provision of law which puts a bar or
restricts with respect to the use of the land
by a tenure holder of his own land.

26. While making these observations,
we do not intend to delve upon the rights of
Asamis but we are of the view that unless
the pond vests with Gaon Sabha i.e. it is a
community pond, the plea raised by the
petitioners cannot be accepted.

27. We would further like to observe
that in a fast changing world, where
development is necessary and industrial
growth
is
taking
place,
sustainable
development has to take place and cannot
be overlooked.

28. In the case of Hinch Lal Tiwari
(supra),
their
Lordships
made
an
observation that the land which has the
character of a pond but due to passage of
time some portion of it has dried up and rest
of the portion is covered with water, cannot
be allotted to anybody for construction of
house building or any allied purposes.

29. Of course, the land which requires
restoration of water reservoir for the
purpose of community use cannot be
allowed for undertaking any other activity
but uprooting the existing developed
colonies or houses built thereon at a time
when the pond was not in use and rather
had fallen into disuse because of drying up
cannot be the intention of law.

30. Here in the instant case, apart from
the fact that one bigha land has been allotted
to the school and over rest of the land thirty
four residential houses stand and all
allotments have been made by Awas Evam
Vikas Parishad and some of them belong to
some of the petitioners in the present
petition, in case we issue a direction for
restoration of the pond as pleaded by the
petitioners, over plot no. 406, it would mean
demolition of all thirty four houses. This
Court cannot be selective in passing orders,
1288 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
if the said plea is applicable to all similarly
situated persons.

31. So far the school is concerned, the
land has been allotted to it. It is for the
Awas Evam Vikas Parishad to proceed and
finalise the matter, if it has not yet been
finalised.

32. Thus, the allotment cannot be
questioned on the ground that the land in
question was recorded as pond, at some
point of time.

33. In view of the above, the petition
has no force, which is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.11.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.,
THE HON'BLE S.C. CHAURASIA, J.

Writ Petition No. 3424 (SB) of 1994

Maidan Singh

 ...Petitioner
Versus
State Public Services Tribunal, Lucknow
and others

 ...Opposite parties

Constitution of India, Article 226-Principle
of Natural Justice-Dismissal order-copy of
supported documents-enquiry report not
given-State Tribunal inspite of specific Plea
in claim petition about personal hearingignored this fact-held-approach of Tribunal
wholly incorrect as well as against Judicial
Discipline-dismissal order quashed without
salary during which-petitioner was out of
service.

Held: Para 18

It is also pertinent to mention that claim
petition of one B.D. Sharma, who was
superior officer and was In-charge of the
Centre, where the petitioner was posted,
against whom disciplinary proceeding was
also initiated like the petitioner, his order
of dismissal was quashed by the Tribunal
on account of irregularities in the inquiry
vide judgment and order dated 3.9.1993.
It has also come on record that the said
B.D. Sharma in compliance of the judicial
order was reinstated in service. On the
other hand, petitioner's claim petition was
rejected
by
the
Tribunal
only
after
scrutinizing charges levelled against him,
but the pleas of non-supply of documents,
opportunity
of
personal
hearing
and
defects in enquiry were not dealt with
properly in the judgment. This approach of
the Tribunal is wholly incorrect, improper
and against the judicial discipline. In these
circumstances, the impugned order of
dismissal cannot be sustained and is liable
to be set aside.
Case law discussed:
AIR 1961 SC 1623; (1998) 6 SCC 651; (2008) 8
SCC 236; [2003] (21) LCD 610; AIR 1968 SC
158; AIR 1963 SC 1719; (1986) 3 SCC 229;
(1986) 3 SCC 229

(Delivered by Hon'ble Rajiv Sharma, J.)

Heard Sri M.S. Siddiqui, learned
Counsel for the petitioner and the State
Counsel.

2. Petitioner has filed the instant writ
petition being aggrieved by the Judgment
and Order dated 13.1.1994, passed by the
U.P. Public Services Tribunal, Lucknow (in
short, referred to as 'Tribunal'), whereby
the claim petition preferred by the petitioner
against the order of dismissal dated
19.2.1985 was rejected.

3. From the material on record, it
comes out that the petitioner was working
as Kamdar/Clerk in the year 1984 at
Danapur Centre, District Bulandshahar. For
dereliction
in
discharge
of
duties,
disciplinary proceeding was initiated against
the petitioner and a charge sheet was given
to him on 28.7.1984. As the charges against